AN ACT to amend and reenact §21-5C-1, §21-5C-2 and §21-5C-4 of the
Code of West Virginia, 1931, as amended, as contained in
chapter one hundred twenty-four, Acts of the Legislature,
regular session, 2014, and to amend and reenact §21-5C-6 of
said code, all relating to the application of minimum wage
and maximum hour standards; modifying the definition of the
term “employer”; clarifying the definition of the term “hours
worked”; clarifying operative dates; requiring legislative
rules; and authorizing promulgation of emergency rules.

Be it enacted by the Legislature of West Virginia:

That §21-5C-1, §21-5C-2 and §21-5C-4 of the Code of West
Virginia, 1931, as amended, as contained in chapter one hundred
twenty-four, Acts of the Legislature, regular session, 2014, be
amended and reenacted, and that §21-5C-6 of said code be amended
and reenacted, all to read as follows:

ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR
EMPLOYEES.

§21-5C-1. Definitions.

As used in this article:

(a) “Commissioner” means the Commissioner of Labor or his or
her duly authorized representatives.

(b) “Wage and hour director” means the wage and hour director
appointed by the Commissioner of Labor as chief of the Wage and
Hour Division.

(c) “Wage” means compensation due an employee by reason of his
or her employment.

(d) “Employ” means to hire or permit to work.

(e) “Employer” includes the State of West Virginia, its
agencies, departments and all its political subdivisions, any
individual, partnership, association, public or private
corporation, or any person or group of persons acting directly or
indirectly in the interest of any employer in relation to an
employee; and who employs during any calendar week six or more
employees as herein defined in any one separate, distinct and
permanent location or business establishment: Provided, That prior
to January 1, 2015, the term “employer” does not include any
individual, partnership, association, corporation, person or group
of persons or similar unit if eighty percent of the persons
employed by him or her are subject to any federal act relating to
minimum wage, maximum hours and overtime compensation: Provided,
however, That after December 31, 2014, for the purposes of section
three of this article, the term “employer” does not include any
individual, partnership, association, corporation, person or group
of persons or similar unit if eighty percent of the persons
employed by him or her are subject to any federal act relating to
maximum hours and overtime compensation.

(f) “Employee” includes any individual employed by an employer
but shall not include: (1) Any individual employed by the United
States; (2) any individual engaged in the activities of an
educational, charitable, religious, fraternal or nonprofit
organization where the employer-employee relationship does not in
fact exist, or where the services rendered to such organizations
are on a voluntary basis; (3) newsboys, shoeshine boys, golf
caddies, pinboys and pin chasers in bowling lanes; (4) traveling
salesmen and outside salesmen; (5) services performed by an
individual in the employ of his or her parent, son, daughter or
spouse; (6) any individual employed in a bona fide professional,
executive or administrative capacity; (7) any person whose
employment is for the purpose of on-the-job training; (8) any
person having a physical or mental handicap so severe as to prevent
his or her employment or employment training in any training or
employment facility other than a nonprofit sheltered workshop; (9)
any individual employed in a boys or girls summer camp; (10) any
person sixty-two years of age or over who receives old-age or
survivors benefits from the Social Security Administration; (11)
any individual employed in agriculture as the word agriculture is
defined in the Fair Labor Standards Act of 1938, as amended; (12)
any individual employed as a firefighter by the state or agency
thereof; (13) ushers in theaters; (14) any individual employed on
a part-time basis who is a student in any recognized school or
college; (15) any individual employed by a local or interurban
motorbus carrier; (16) so far as the maximum hours and overtime
compensation provisions of this article are concerned, any
salesman, parts man or mechanic primarily engaged in selling or
servicing automobiles, trailers, trucks, farm implements, aircraft
if employed by a nonmanufacturing establishment primarily engaged
in the business of selling such vehicles to ultimate purchasers;
(17) any employee with respect to whom the United States Department
of Transportation has statutory authority to establish
qualifications and maximum hours of service; (18) any person
employed on a per diem basis by the Senate, the House of Delegates,
or the Joint Committee on Government and Finance of the Legislature
of West Virginia, other employees of the Senate or House of
Delegates designated by the presiding officer thereof, and
additional employees of the Joint Committee on Government and
Finance designated by such joint committee; or (19) any person
employed as a seasonal employee of a commercial whitewater
outfitter where the seasonal employee works less than seven months
in any one calendar year and, in such case, only for the limited
purpose of exempting the seasonal employee from the maximum wage
provisions of section three of this article.

(g) “Workweek” means a regularly recurring period of one
hundred sixty-eight hours in the form of seven consecutive twenty-four hour periods, need not coincide with the calendar week, and
may begin any day of the calendar week and any hour of the day.

(h) “Hours worked” means the hours for which an employee is
employed: Provided, That in determining hours worked for the
purposes of sections two and three of this article, there shall be
excluded any time spent in changing clothes or washing at the
beginning or end of each workday, time spent in walking, riding or
traveling to and from the actual place of performance of the
principal activity or activities which such employee is employed to
perform and activities which are preliminary to or postliminary to
said principal activity or activities, subject to such exceptions
as the commissioner may by rules and regulations define.

§21-5C-2. Minimum wages.

(a) Minimum wage:

(1) After June 30, 2006, every employer shall pay to each of
his or her employees wages at a rate not less than $5.85 per hour.

(2) After June 30, 2007, every employer shall pay to each of
his or her employees wages at a rate not less than $6.55 per hour.

(3) After June 30, 2008, every employer shall pay to each of
his or her employees wages at a rate not less than $7.25 per hour.

(4) After December 31, 2014, every employer shall pay to each
of his or her employees wages at a rate not less than $8.00 per
hour.

(5) After December 31, 2015, every employer shall pay to each
of his or her employees wages at a rate not less than $8.75 per
hour.

(6) When the federal minimum hourly wage as prescribed by 29
U.S.C. §206 (a) (1) is equal to or greater than the wage rate
prescribed in the applicable provision of this subsection, every
employer shall pay to each of his or her employees wages at a rate
of not less than the federal minimum hourly wage as prescribed by
29 U.S.C. §206 (a) (1). The minimum wage rates required under this
subsection shall be thereafter adjusted in accordance with
adjustments made in the federal minimum hourly rate. The adoption
of the federal minimum wage provided by this subsection includes
only the federal minimum hourly rate prescribed in 29 U.S.C. §206
(a) (1) and does not include other wage rates, or conditions,
exclusions, or exceptions to the federal minimum hourly wage rate.
In addition, adoption of the federal minimum hourly wage rate does
not extend or modify the scope or coverage of the minimum wage rate
required under this subsection.

(b) Training wage:

(1) Notwithstanding the provisions set forth in subsection (a)
of this section to the contrary, an employer may pay an employee
first hired after June 30, 2006, a subminimum training wage not
less than $5.15 per hour: Provided, That an employer may pay an
employee first hired after December 31, 2014, a subminimum training
wage not less than $6.40 per hour.

(2) An employer may not pay the subminimum training wage set
forth in subdivision (1) of this subsection to any individual:

(A) Who has attained or attains while an employee of the
employer, the age of twenty years; or

(B) For a cumulative period of not more than ninety days per
employee: Provided, That if any business has not been in operation
for more than ninety days at the time the employer hired the
employee, the employer may pay the employee the subminimum training
wage set forth in subdivision (1) of this subsection for an
additional period not to exceed ninety days.

(3) When the federal subminimum training wage as prescribed by
29 U.S.C. §206 (g) (1) is equal to or greater than the wage rate
prescribed in subdivision (1) of this subsection, every employer
shall pay to each of his or her employees wages at a rate of not
less than the federal subminimum training wage as prescribed by 29
U.S.C. §206 (g) (1). The subminimum training wage rates required
under this subsection shall be thereafter adjusted in accordance
with adjustments made in the federal subminimum training wage rate.
The adoption of the federal subminimum training wage provided by
this subsection includes only the federal subminimum training wage
rate prescribed in 29 U.S.C. §206 (g) (1) and does not include
other wage rates, or conditions, exclusions, or exceptions to the
federal subminimum training wage rate. In addition, adoption of
the federal subminimum training wage rate does not extend or modify
the scope or coverage of the subminimum training wage rate required
under this subsection.

(c) Notwithstanding any provision or definition to the
contrary, the wages established pursuant to this section are
applicable to all individuals employed by the State of West
Virginia, its agencies and departments, regardless if the employee
or employer are subject to any federal act relating to minimum
wage: Provided, That at no time may the minimum wage established
pursuant to this section fall below the federal minimum hourly wage
as prescribed by 29 U.S.C. §206(a)(1), and at no time may the
subminimum training wage established pursuant to this section fall
below the federal subminimum training wage rate as prescribed by 29
U.S.C. §206 (g) (1).

§21-5C-4. Credits.

Prior to January 1, 2015, in determining whether an employer
is paying an employee wages and overtime compensation as provided
in sections two and three of this article, there shall be provided
in accordance with the regulations which shall be promulgated by
the commissioner a credit to the employer of twenty percent of the
hourly rate of the amount paid an employee customarily receiving
gratuities, and a reasonable credit for board and lodging furnished
to an employee: Provided, That after December 31, 2014, in
determining whether an employer is paying an employee wages and
overtime compensation as provided in sections two and three of this
article, there shall be provided in accordance with the legislative
rules proposed for promulgation by the commissioner a credit to the
employer of seventy percent of the hourly rate of the amount paid
an employee customarily receiving gratuities, and a reasonable
credit for board and lodging furnished to an employee. The
commissioner shall propose legislative rules for promulgation
relating to maximum allowances to employers for room and board
furnished to employees: Provided,however, Thatthe employer
shall be required to furnish to the commissioner upon request,
documentary evidence that the employee is receiving at least
seventy percent of the minimum wage in gratuities or is receiving
room and lodging in accordance with the rules and regulations
promulgated by the commissioner.

§21-5C-6. Duties and powers of commissioner of labor.

(a) It shall be the duty of the commissioner to enforce and
administer the provisions of this article and rules promulgated
thereunder, and to promulgate such rules and regulations, in
accordance with chapter twenty-nine-a of the Code of West Virginia,
1931, as amended, as shall be needful to give effect to the
provisions of this article. The commissioner is authorized to
promulgate emergency rules prior to January 1, 2015, to implement
and administer the amendments made to this article in 2014. If the
commissioner makes a finding that a conflict exists between state
and federal standards defining employee exemptions, the
commissioner is further authorized to promulgate emergency rules
prior to January 1, 2015, for the purpose of revising the state
standards to conform with federal law.

(b) The commissioner is authorized at reasonable times to
enter the place of business of an employer subject to the
provisions of this article, for purposes of: (1) Inspecting and
examining, and copying, photographing or otherwise reproducing all
payroll records of the employer directly relating to wages and
hours of employment of persons employed by him or her; (2)
questioning or otherwise examining persons employed by the employer
on the subject of wages and hours of their employment, and
gratuities received or earned in such employment.

(c) The commissioner is authorized and empowered to make
investigations to determine whether there is reasonable cause to
believe that any person is an employer as defined in section one of
this article, or whether there is reasonable cause to believe that
any provision of this article is being or has been violated.

(d) The commissioner is authorized and empowered to file
criminal complaints against persons whom the commissioner has
reasonable cause to believe have committed any offense created or
defined by the provisions of this article.

(e) The commissioner is authorized and empowered to institute
civil actions seeking appropriate injunctive relief to compel an
employer subject to this article to comply with the provisions of
this article.

(f) The commissioner shall enforce and administer the
provisions of this article in accordance with chapter twenty-nine-a
of this code. The commissioner or his or her authorized
representatives are empowered to enter and inspect such places,
question such employees and investigate such facts, conditions, or
matters as they may deem appropriate, to determine whether any
person, firm or corporation has violated any provision of this
article, or any rule or regulation issued hereunder or which may
aid in the enforcement of the provisions of this article.